BILL ANALYSIS Ó
AB 180
Page 1
Date of Hearing: May 7, 2013
Counsel: Gabriel Caswell
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Tom Ammiano, Chair
AB 180 (Bonta) - As Amended: May 1, 2013
SUMMARY : Provides an exemption for the City of Oakland to enact
and enforce ordinances and regulations that are more restrictive
than state law regulating the registration or licensing of
commercially manufactured firearms.
EXISTING LAW :
1)Provides that it is the intention of the Legislature to occupy
the whole field of regulation of the registration or licensing
of commercially manufactured firearms as encompassed by the
provisions of the Penal Code, and such provisions shall be
exclusive of all local regulations, relating to registration
or licensing of commercially manufactured firearms, by any
political subdivision as defined. (California Government Code
Section 53071.)
2)Provides that no permit or license to purchase, own, possess,
keep, or carry, either openly or concealed, shall be required
of any citizen of the United States or legal resident over the
age of 18 years who resides or is temporarily within this
state, and who is not within the excepted classes prescribed,
to purchase, own, possess, keep, or carry, either openly or
concealed, a handgun within the citizen's or legal resident's
place of residence, place of business, or on private property
owned or lawfully possessed by the citizen or legal resident.
[Penal Code Section 25605(b).]
3)Prohibits any person from selling, leasing, or transferring
firearms unless the person has been issued a license, as
specified. [Penal Code Section 26500(a).]
4)Requires the register or record of electronic transfer for
handguns, and all firearms starting January 1, 2014, to
include all of the following information: [Penal Code Section
28160(a).]
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a) The date and time of sale;
b) The make of firearm;
c) Peace officer exemption status, as specified, and the
agency name;
d) Auction or event waiting period exemption, as specified;
e) Dealer waiting period exemption, as specified;
f) Dangerous weapons permitholder waiting period exemption,
as specified;
g) Curio and relic waiting period exemption, as specified;
h) California Firearms Dealer number;
i) For transactions occurring on or after January 1, 2003,
the purchaser's handgun safety certificate number;
j) Manufacturer's name if stamped on the firearm;
aa) Model name or number, if stamped on the firearm;
bb) Serial number, if applicable;
cc) Other number, if more than one serial number is stamped
on the firearm;
dd) Any identification number or mark assigned to the
firearm, as specified;
ee) If the firearm is not a handgun and does not have a
serial number, identification number, or mark assigned to
it, a notation as to that fact;
ff) Caliber;
gg) Type of firearm;
hh) If the firearm is new or used;
ii) Barrel length;
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jj) Color of the firearm;
aaa) Full name of purchaser;
bbb) Purchaser's complete date of birth;
ccc) Purchaser's local address;
ddd) If current address is temporary, complete permanent
address of purchaser;
eee) Identification of purchaser;
fff) Purchaser's place of birth (state or country);
ggg) Purchaser's complete telephone number;
hhh) Purchaser's occupation;
iii) Purchaser's sex;
jjj) Purchaser's physical description;
aaaa)All legal names and aliases ever used by the purchaser;
bbbb)Yes or no answers to questions that prohibit purchase,
including, but not limited to, conviction of a felony, as
defined, or a specified offense, whether the purchaser is a
person who has been adjudicated by a court to be a danger
to others or found not guilty by reason of insanity, and
whether the purchaser is a person who has been found
incompetent to stand trial or placed under conservatorship
by a court;
cccc)Signature of purchaser;
dddd)Signature of salesperson, as a witness to the
purchaser's signature;
eeee)Salesperson's certificate of eligibility number, if the
salesperson has obtained a certificate of eligibility;
ffff)Name and complete address of the dealer or firm selling
the firearm as shown on the dealer's license;
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gggg)The establishment number, if assigned;
hhhh)The dealer's complete business telephone number;
iiii)A statement of the penalties for signing a fictitious
name or address, knowingly furnishing any incorrect
information, or knowingly omitting any information required
to be provided for the register; and
jjjj)Other specified information.
5)Requires, except as permitted by DOJ regulations, the
purchaser of a firearm to provide his or her right thumbprint
on the register in a manner prescribed by the DOJ. [Penal
Code Section 28160(b).]
6)Requires the firearms dealer to record on the register or
record of electronic transfer the date that the firearm is
delivered. [Penal Code Section 28160(c).]
7)Requires, within 10 days of the date a handgun, and any
firearm starting January 1, 2014, is acquired as an
institutional weapon, as defined, by an authorized law
enforcement agency, a record of that acquisition to be entered
as an institutional weapon into the Automated Firearms System
(AFS) via the California Law Enforcement Telecommunications
System (CLETS) by the acquiring agency. Requires that any
agency without access to AFS to arrange with the sheriff of
the county in which the agency is located to input this
information via CLETS. [Penal Code Section 27600(c).]
8)Prohibits a person from purchasing or receiving a handgun,
except an antique firearm, without a valid handgun safety
certificate, and prohibits a person from selling, delivering,
loaning, or transferring a handgun, except an antique firearm,
to another person without a valid handgun safety certificate.
(Penal Code Section 31615.)
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : According to the author, "It is widely
recognized that the people of Oakland are suffering from gun
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violence. The City of Oakland was home to 131 homicides in
2012-21 more than 2011. As of October 2012, Oakland had 629
police officers - a ten year low, and down from a high of 837
officers just four years ago. The situation is so grave that
the California Highway Patrol and the Alameda County Sheriff's
Department are both contributing officers to supplement the
regular patrols.
"Given the unique challenges and rampant gun violence facing
Oakland, we wish to empower the city to enact a stricter
regulatory regime for firearms licensing or registration than
is in place for the state."
2)Preemption : Preemption occurs when a higher level of
government removes regulatory power from a lower level of
government. For example, Congress may remove legislative
authority from the states in certain areas. Likewise, state
governments may, in some cases, remove local legislative
authority. The strongest form of preemption occurs when a
higher level of government expressly removes that power or
expressly reserves that power. In California, regulation and
licensing of firearms has been expressly preempted by state
government.
Most state constitutions allocate authority to local
governments to regulate in the interests of the public health,
safety and welfare (which generally includes regulation of
firearms and ammunition). "State preemption" occurs when a
state government removes a portion of a local government's
legislative authority. States differ considerably in how and
to what extent they preempt the regulation of firearms and
ammunition.
Generally, preemption occurs in two ways: through express
preemption and implied preemption . Express preemption occurs
when a state provides explicitly, in the language of a statute
or constitutional provision, that it intends to remove a lower
government's regulatory authority. Absent an express
statement, courts may infer an intent to take over a field of
regulation, even though there is no express legislative
statement to that effect. This is referred to as implied
preemption. In general, courts may find that a local law is
preempted if it conflicts directly with state law by requiring
what the state law prohibits, or prohibiting what the state
law requires. In addition, when a comprehensive scheme of
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state regulation exists on a particular subject matter, many
state courts find that the state legislature thereby indicated
an implied intent to assert exclusive authority over that
subject matter.
The existence and degree of express state preemption of local
firearms and ammunition regulation varies from state to state,
as do the tests courts use to determine whether implied
preemption exists.
California expressly preempts local governments from
regulating in the areas of registration or licensing of
firearms; manufacture, sale or possession of imitation
firearms; and licensing or permitting with respect to the
purchase, ownership, possession or carrying of a concealable
firearm in the home or place of business. In other areas,
courts have found that local governments have a great deal of
authority to regulate firearms and ammunition in their
communities. For example, courts have rejected preemption
challenges to many local firearms and ammunition laws,
including ordinances regulating junk guns, the location and
operation of firearms dealers, and the sale and possession of
firearms and ammunition on county-owned property
3)Patchwork : One public policy reason to have statewide
consistency in the regulation of registration and licensing of
commercial firearms is to prevent an inconsistent patchwork of
local laws. Due to the mobile natures of California citizens,
and firearms themselves, individuals are in danger of
violating laws in one local jurisdiction by following laws in
their own local jurisdiction. For instance, if this bill
becomes law and the City of Oakland decides to ban all
handguns in the City of Oakland how can people who reside in
the City of Alameda (which is only accessible through the City
of Oakland) transport lawfully owned firearms to and from
their city?
4)Argument in Support : According to the City of Oakland , "This
bill will greatly help improve public safety by enabling the
City of Oakland to enact stricter gun laws with regards to
licensing and registration than the rest of the state.
"AB 180 provides the City of Oakland with additional tools
that it needs to curb gun violence and enhance public safety.
The City of Oakland had 131 homicides in 2012 which is 21 more
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than in 2011. Currently we have suffered 31 homicides this
year already. Shootings are also on the rise. The level of gun
violence has increased and we need additional tools to address
the flood of guns into our City, along with tighter
restrictions to prosecute those trading these illegal arms.
"The reason why we need this legislation is to supplement our
public safety officers whose staffing levels have decreased
over the years due to our budget.
"Current sworn staffing is at 646 police officers, a ten year
low, and down from a high of 837 officers just four years ago.
In order to comprehensively address public safety the City has
requested interim support of the California Highway Patrol and
the Alameda County Sheriff's Department to supplement the
regular patrols. However this is not a long term solution.
"Due to these factors, we wish to enact and enforce an
ordinance or regulation that is more restrictive than state
law regulating the registration or licensing of commercially
manufactured firearms as encompassed by the Penal Code."
5)Argument in Opposition: According to the National Rifle
Association , "The repeal of state preemption would lead to an
unpredictable patchwork of local laws. American citizens have
right to travel from one jurisdiction to another in California
without the fear of violating locally politically motivated
ordinances."
6)Prior Legislation : AB 1315 (De Leon), Statutes of 2012,
Chapter 214, removed the state preemption of any local
ordinances regarding the manufacture, sale, or possession of
imitation firearms, BB devices, and air rifles within the
County of Los Angeles.
REGISTERED SUPPORT / OPPOSITION :
Support
California State Conference of the NAACP
City of Oakland
Opposition
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California Association of Federal Firearms Licenses
California Rifle and Pistol Association
California Right to Carry
National Rifle Association of America
One private individual
Analysis Prepared by : Gabriel Caswell / PUB. S. / (916)
319-3744